The case: Marilyn Casanova v. Michael S. Polsky, Esq. 
Majority: Justice Rebecca Grassl Bradley (26 pages), for a unanimous court.

The upshot
After the Atrium, a senior-living facility, defaulted on debt service payments to a group of bondholders, the facility filed a petition for receivership. The court-appointed receiver sold the Atrium's assets, generating more than $4 million in proceeds. According to the receiver, the Atrium owed the bondholders more than $6 million, secured by a valid mortgage lien on the Atrium's estate. Many of the Atrium's residents claimed they were entitled to the proceeds of the sale because, under their residency agreements, they were owed reimbursement of the entrance fees they paid to the Atrium. The circuit court concluded the bondholders' mortgage lien was superior to the residents' entrance fee claims. The court of appeals reversed, applying M&I First National Bank v. Episcopal Homes Management, Inc.​ to deem the residents' claims superior to the bondholders' lien.

Before this court, the residents concede the bondholders possess a valid, perfected mortgage lien on the Atrium's estate, but the residents argue (1) the bondholders contracted away the superiority of their mortgage lien, and (2) Episcopal Homes grants entrance fee claims superiority. We disagree and hold: (1) Under Wis. Stat. § 128.17, the bondholders' mortgage lien is superior to the residents' contract claims; (2) the bondholders did not contract away the superiority of their lien; and (3) Episcopal Homes does not apply to the proceeds from the sale of real property with a properly perfected mortgage lien. We therefore reverse the decision of the court of appeals. 

Background

The Atrium of Racine, Inc. was a nonprofit corporation that owned and operated a 76-unit senior-living facility. In 2002, the Atrium sought to build an assisted-living home called Bay Pointe. To finance the project, the Atrium contracted with the Elderly Housing Authority of the City of Racine (the Authority) to issue bonds. ... 

The bonds to finance construction eventually were held by Bank One Trust Company, a trustee for a group of about 800 investors. Various contracts were signed by different parties. 

.... As required by securities regulations, the bond underwriter prepared an Official Statement summarizing the material terms and conditions of the bond issuance as well as the risks of investing. Because the Official Statement is not a contract, it was not signed by any party, nor was it incorporated by reference into any contract. 

Bank One purchased $8,050,000 in Atrium bonds from the Authority under the Trust Indenture, which assigned to Bank One (as Bondholders' Trustee) the Authority's Mortgage lien on the Atrium's estate. ... No party disputes the bondholders possess a properly perfected mortgage lien on the Atrium's estate. 

                                                                                          Residency agreements
Before moving into the Atrium, each resident signed a residency agreement requiring the resident to pay an entrance fee ranging from $40,000 to $238,000. Collectively, Atrium residents had paid over $7.5 million in entrance fees at the time this suit started. Upon moving out of the Atrium, each resident's entrance fee would be partly refundable when a new resident moved into the Atrium and paid an entrance fee. ... Once a new fee was paid, the Atrium used that money to refund the entrance fee paid by the former resident. Entrance fees were deposited in the Atrium's general operating account –  commingled with the funds for day-to-day expenses – rather than a segregated account.

                                                                                                    Receivership
This suit arose when the Atrium defaulted on its debt service payments to the bondholders. ...

                                                                                                           ***

The receiver notified the Atrium's creditors and other interested parties of his appointment and requested they file their verified claims with the circuit court. Residents individually filed proofs of claim for refund of entrance fees collectively totaling more than $7 million. ...

The bondholders filed their own proof of claim for $6,264,620.65. The receiver noted the bonds were "secured by first position properly perfected security interests and mortgages" and determined the Atrium owed the bondholders' trust more than $6,097,000. As for cash in the Atrium's estate, the receiver found only two accounts, neither holding funds sufficient to continue operating the Atrium – or to pay the debt owed to the bondholders. The first account was a "general operating account" containing $80,795.11; the second was a "Resident Trust Account" containing less than $3,000. According to counsel for the receiver, the Resident Trust Account "did not have entrance fees deposited" into it. Instead, it held "some minimal amount of funds that [were] paid by the residents for various services at the debtor's facilities[.]" 

The receiver eventually sold the Atrium for $5.5 million, with the money to go to the bondholders. 

The residents lost in circuit court, appealed, and the appeals panel reversed the circuit court. The bondholders and the receiver then turned to the Supreme Court.

The guts

Relying on provisions of the Financing Documents and the Official Statement, the residents assert the bondholders contracted away the superiority of their Mortgage lien. Certain provisions, they argue, subordinated the bondholders' Mortgage lien to the contractually required repayment of the residents' entrance fees. We disagree.

                                                                                                           ***

​Section 706.11(1) provides that when "[a]ny mortgage executed to a state or national bank" "has been duly recorded, it shall have priority over all liens upon the mortgaged premises and the buildings and improvements thereon . . . filed after the recording of such mortgage" with exceptions only for certain categories of liens under which the residents' entrance fee claims undisputedly do not fall. 

                                                                                                           ***

The residents argue the bondholders consented in the Financing Documents and the Official Statement to the subordination of their Mortgage. Although "[i]t is true that a subordination can be incorporated" into any contract the Official Statement is not a contract and the Financing Documents do not contain any provision subordinating the bondholders' Mortgage. 

                                                                                                           ***

The residents contended that the bondholders waived primacy in financing documents, including the Official Statement. 

Because the Official Statement is not a contract, it is incapable of containing a subordination agreement. It is not an agreement at all, in whole or in part. The residents contend the Official Statement must be "controlling" because there is no other explanation for why it exists. To the contrary, it exists because the government says it must. The residents accurately argue the Official Statement serves as a notice to investors of investment risks and "what claims might be superior to theirs," but nothing in the Official Statement actually subordinates the bondholders' Mortgage.

                                                                                                           ***

Other provisions on which the residents rely likewise merely acknowledge superior claims might exist. ... The key word in these provisions is "may." Like "subject to," this word does not subordinate the Mortgage. It most naturally conveys only "a possibility."  In effect, these provisions merely convey there is a possibility Permitted Liens could be superior to the Mortgage lien. Possibilities are not realities; the residents never attempted to create liens on the Atrium's real property, and these provisions do not subordinate the bondholders' secured lien to the residents' unsecured claims for entrance fees. 

                                                                                                           ***

The residents next rely on Episcopal Homes – a court of appeals decision not binding on this court. ...

                                                                                                          ***

In Episcopal Homes, the circuit court granted summary judgment in favor of the DeKoven development residents and imposed a constructive trust against the entrance fee account. The court of appeals affirmed, concluding DeKoven had contracted with each resident as landlord and tenant; accordingly, the court deemed the rental agreements leases. Based on the language of the rental agreements, the court concluded the entrance fees were effectively security deposits under Wisconsin Administrative Code governed by the public policy espoused in the administrative code. Because Wisconsin Administrative Code prohibits using standard forms to place additional conditions on the return of security deposits, the court determined any subordinating provisions in the rental agreements were unenforceable.

The appeals court agreed.

Episcopal Homes is inapplicable to the facts of this case. In Episcopal Homes, the court of appeals exercised equitable powers against a segregated account containing funds traceable to the residents' payment of entrance fees. In contrast, the residents of the Atrium seek to usurp a first priority lien on the proceeds from the sale of real property. Whatever equitable powers courts may possess, nothing in law or equity authorizes courts to disrupt the statutorily prescribed priority of secured lenders. 

                                                                                                           ***

The residents' argument for extending Episcopal Homes beyond a segregated account of entrance fees not in receivership to reach the materially distinct proceeds from the sale of real property subject to a perfected mortgage lien asks this court to disregard the plain language of chapter 128. We have no legal authority to do so. 

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.

The case: State of Wisconsin v. Oscar C. Thomas
 
Majority/Lead Opinion: Justice Patience D. Roggensack announced the mandate of the court and delivered a partial majority opinion (34 pages) that was joined by Chief Justice Annette K. Ziegler and joined in part by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Rebecca F. Dallet, Brian Hagedorn, and Jill J. Karofsky.

Concurrence: Dallet (10 pages), which reflects the majority opinion of the court on the issue of confrontation; joined by Walsh Bradley, Grassl Bradley, and Karofsky.

Concurrence: Hagedorn (2 pages).

The state switched its argument during litigation, according to Roggensack's and Hagedorn's writings. The state first argued that a DNA report was used by the prosecution to impeach Thomas's defense expert. Later it argued the report was used during cross-examination and closing argument to show the truth of the matter it concerned. 

For people most interested in the confrontation issue, WJI recommends reading Dallet's concurrence first, as it is the majority opinion of the court and her writing is clear.

The upshot

(Joined by Walsh Bradley, Grassl Bradley, Dallet, Karofsky, and Ziegler)
We accepted two issues for review. First, whether Thomas's confession of sexual assault was corroborated by a significant fact, and we conclude it was. This opinion is the majority opinion for the discussion of corroboration. Second, whether the cross-examination of Thomas's expert witness by use of a Wisconsin Crime Lab report ("the Report") that was not in evidence and whose author did not testify violated Thomas's confrontation right. Four justices conclude the Report's contents were used for their truth during cross-examination, thereby violating Thomas's right of confrontation. Justice Dallet's concurrence is the decision of the court for the confrontation issue. Six justices conclude Hemphill (v. New York) precludes admission of evidence to correct an allegedly misleading impression created by the defendant, and seven justices conclude that any error related to the Report was harmless. Accordingly, we affirm the court of appeals. 

Background

Thomas was arrested in 2006 for strangling to death his wife, Joyce Oliver-Thomas. He was charged with first-degree intentional homicide, first-degree sexual assault, and false imprisonment. (Roggensack says in a footnote that the couple was divorced, but reconciled without remarrying. The decision refers to them as married, though this was not technically true at the time of Oliver-Thomas's death.) A jury convicted Thomas on all counts. 

Thomas's first appeal failed in state courts, but he filed a federal habeas petition and the Seventh Circuit Court of Appeals granted him a new trial. In 2018, a jury again convicted him on all counts, and Kenosha County Circuit Judge Bruce E. Schroeder sentenced him to life in prison. Thomas appealed again and lost in the state court of appeals.

(Joined by Ziegler)
.... Specifically, the court of appeals concluded there was sufficient corroborating evidence of the sexual assault confession, and denial of the postconviction motion was appropriate. The court of appeals also concluded the Report's DNA evidence was "inadmissible hearsay," causing a Confrontation Clause violation when it was used erroneously during trial and during the State's closing argument. However, the court of appeals concluded that the error was harmless.

In its briefing to us, the State did not argue that the Report could be used for the truth of its contents. Rather, it set the issue up as: "[W]hen Thomas's expert gave testimony directly contradicting the lab report on which he relied, it was an implied waiver of Thomas's right to confront the author of the lab report." However, Dr. Williams did not say he "relied" on the Report, but rather, that he "reviewed" the Report along with hundreds of other pages of material relative to this case. Nevertheless, the State veered from the argument it raised consistently below that the prosecutor used the Report to impeach Thomas's defense expert. Instead, at oral argument the State argued that we should analyze the Report based on the contention that its contents were properly used during cross-examination and during closing argument for the truth of the matters asserted therein. 

The guts

Thomas gave contradictory statements to the police, which involved him smoking crack before Oliver-Thomas's death. In one, Thomas said he and Oliver-Thomas, after she complained repeatedly of chest pain during the day, fell off the bed while they had sex. Thomas left the building for a time afterwards and found his wife on the floor when he returned. In another, Thomas said Oliver-Thomas at first asked him to stop with his sexual advances, but then consented to sex. In this version, too, they fell to the floor. Thomas said he had his left arm up around his wife's neck while they had sex. The two got back into bed, but fell out again. Thomas said he again had his arm around her neck. He left the apartment and returned to find Oliver-Thomas lying face down on the floor. Thomas said he tried to lift her, but lost his grip twice and Oliver-Thomas's face hit the bed or floor each time.

Corroboration
(Joined by Ziegler, Walsh Bradley, Grassl Bradley, Dallet, Hagedorn, and Karofsky)
While the State does not, and need not, offer corroborating evidence of every element of the crime of sexual assault, the State has offered corroborating evidence for a "significant fact" of Thomas's statements given to police. Thomas's downstairs neighbor testified she heard an argument between a man and woman, and the woman screamed, "Stop, stop, I love you, I love you." The neighbor also testified she heard something big hit the floor, the sound of furniture moving, and silence. She then heard the apartment door open, and a person she identified as Thomas walked out. 

                                                                                                    ***
 
Confrontation
(Joined by Ziegler only)
The Confrontation Clause of the Sixth Amendment of the United States Constitution prevents the admission of testimonial hearsay when the declarant is absent from trial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. ...

                                                                                                    ***

Thomas called just one witness at trial – Dr. Williams, a medical examiner. On direct examination, Dr. Williams testified that "in allegations of violence resulting in death," he looks for "an exchange of trauma, an exchange of evidence" between the victim and accused. When asked specifically, Dr. Williams replied that he did not see signs of a struggle or of defensive wounds. In his opinion, abrasions on Ms. Oliver-Thomas's face could have resulted from emergency CPR or from engaging in face-down sex on the floor, consistent with Thomas's statements. 

On cross-examination, the state challenged Dr. Williams's characterization that there were no signs of an exchange of trauma.... Documents submitted prior to trial indicate Dr. Williams reviewed the Report, among other things, in preparing his testimony. Thomas urges us to conclude that the details elicited on cross-examination of Dr. Williams violated his confrontation right. 

                                                                                                   ***

[T]he State's use of the Report to impeach Dr. Williams on cross-examination did not violate Thomas's confrontation right. The State challenged Dr. Williams's conclusion that there was "no exchange of evidence" by referencing the report that Dr. Williams had reviewed, which showed DNA exchanges under the fingernails of Thomas and Ms. Oliver-Thomas. Stated otherwise, by drawing attention to the "exchange" of DNA between Thomas and Ms. Oliver-Thomas, the State attempted to undermine Dr. Williams's opinion that Ms. Oliver-Thomas's cause of death could have been accidental. The degree to which the State succeeded in limiting the usefulness of Dr. Williams's testimony was then considered by the jury together with all of the evidence in deciding Thomas's guilt. Although we recognize Thomas could have asked for limiting instructions that the jury not consider the Report's contents for their truth because testimony about the contents of the Report was not admitted for substantive purposes, he made no such request. We conclude the State's questioning on cross-examination relevant to the Report ​did not violate Thomas's right to confront the Report's author when used to impeach Dr. Williams's opinion. 

                                                                                                  ***

.... [T]he State views the Report at issue in Thomas's conviction as belonging to a "narrow category of evidence that a defense expert relied on and gave factually inaccurate testimony about." ... [I]n the State's view, Thomas elicited testimony that "flatly contradicted" the Report. Because "he made 'a tactical choice' to put the [R]eport in play," he "waived his confrontation right as to that [R]eport."

                                                                                           ***

.... However, if the State wanted to use the Report for its truth, the State was required to introduce and authenticate the Report and then subject its author to cross-examination by Thomas in accordance with the Sixth Amendment. ... The information the State elicited from Dr. Williams on cross-examination for impeachment purposes did not transform the Report into admissible hearsay. ...

                                                                                           ***

We conclude the State's reliance on hearsay evidence that was used to impeach Thomas's expert's opinion was improper during closing arguments because the Report then was used for the truth of the statements therein.  As stated earlier, the facts or data upon which an expert bases her opinion may be introduced ... but only for the limited purpose of assisting the factfinder in determining an expert's credibility. Evidence brought in for that purpose does not transform into admissible hearsay for subsequent use at trial.

Furthermore, after defense counsel objected, the prosecutor incorrectly assured the judge that, "[T]he evidence supports this theory, Your Honor. We have testimony of the scratches on her face. ... Her DNA is found under his fingernails." It was therefore erroneous to permit the prosecutor's statement in closing argument because the DNA evidence in the Report was not properly admitted as evidence for its substantive content. 

                                                                                           ***

Harmless error​
The harmless error query does not reduce to a mere quantum of evidence, but instead, whether absent the hearsay/Report it is clear beyond a reasonable doubt that a rational jury would have found Thomas guilty. Here, we conclude that the State offered sufficient evidence for a rational jury to determine Thomas sexually assaulted and intentionally took the life of his wife. All of the observations of physical injury to Ms. Oliver-Thomas are consistent with the jury's conclusion that Thomas's interactions with her were not consensual and were intentional. Accordingly, we conclude that the state has met its burden to show that the error was harmless.​

Concurrence

Confrontation
I conclude that the State violated Thomas's Sixth Amendment rights. The State sought the DNA evidence described in the Crime Lab report for its truth at trial. That much is clear from the prosecutor's closing argument to the jury. And the State confirmed that the DNA evidence was offered for its truth throughout briefing and during oral argument in this court. For that reason, the DNA evidence in the Crime Lab report was testimonial hearsay; it was an out of court statement, prepared "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," and offered by someone other than the declarant for the truth of the matters asserted. Because the author of that report was not available for cross-examination, admitting testimony about it therefore violated the Confrontation Clause. Nevertheless, because that Confrontation Clause violation was harmless, I conclude that Thomas's convictions should stand. 

Thomas's forensic expert, the sole defense witness at trial, testified on direct examination that he did not see any defensive wounds or "signs of a struggle" on the victim. This was important because Thomas argued that he killed the victim accidentally. During cross-examination, the State asked Thomas's expert if he reviewed reports from the Wisconsin Crime Lab in reaching his conclusions. This was the first time the Crime Lab report and the DNA evidence contained in it came up at trial, and defense counsel objected to any questioning about the contents of the report. The circuit court overruled the objection, however, and allowed the State to ask Thomas's expert about the report because he reviewed it before reaching his opinion. The prosecutor then asked the expert about the report's finding that Thomas's DNA was under the victim's fingernails at the time of the autopsy. After looking at the report, Thomas's expert said "[y]es, this appears to be an analysis that shows that the DNA found under the fingerprints [sic] was obviously a mixture. You are going to have [the victim's] DNA, but also evidence of DNA from Oscar Thomas." He also confirmed that the victim's DNA was found under Thomas's fingernails. Thomas's expert dismissed those conclusions, however, explaining that Thomas and the victim were married, and "[a] finding of the DNA, they could be scratching each other's back. I mean, there is no evidence of trauma on him to support the fact that she was struggling." The report was never admitted into evidence. 

The State's actions would have been permissible if, as the majority/lead opinion hypothesizes, it was done only to impeach Thomas's expert during cross-examination. But the record, and the State's briefing and presentation at oral argument, all establish that the evidence was offered for the truth of matters contained in the report – that the victim's DNA was under Thomas's fingernails and Thomas's DNA was under her fingernails. That was why, when the circuit court told the prosecutor to confine his closing arguments to the evidence, he responded – in front of the jury – that "[w]e have testimony of the scratches on [the victim's] face. We have testimony that it could have been caused by DNA. Her DNA is found under his fingernails." The only "testimony" about DNA was Thomas's expert's answers about the Crime Lab report's findings during cross-examination. And if there was any remaining question about the purpose of eliciting that testimony, it was answered in briefing and at oral argument in this court, where the State consistently asserted that Thomas impliedly waived his right to confront the author of the Crime Lab report when his expert's testimony contradicted the report's contents. 

Nevertheless, the majority/lead opinion insists that the State used the evidence during cross-examination not for its truth, but only to impeach Thomas's expert's credibility. That is correct, in the majority/lead opinion's view, since the State's briefing "did not argue that the report could be used for the truth of its contents."  But the majority/lead opinion misunderstands the State's position. Its argument that Thomas impliedly waived his confrontation right only matters if the report was used for its truth. After all, the Confrontation Clause only prohibits the introduction of testimonial hearsay, and hearsay is, by definition, an out of court statement that is "offered in evidence to prove the truth of the matter asserted." Thus, the State's consistent position before us is that it did not violate the Confrontation Clause when it sought to establish the truth of the Crime Lab report's findings through Thomas's expert's testimony on cross-examination. 

The problem with that position is that the Confrontation Clause "prohibits the introduction of testimonial statements by a non-testifying witness, unless the witness is 'unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'" Crime lab reports are testimonial statements because they are "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."  And for that reason, the conclusions reached by such reports may be admitted for their truth at trial only if the person who prepared the report is subject to cross-examination. 

That wasn't the case at Thomas's trial. Instead, through its questioning of Thomas's expert, the State was able to elicit DNA evidence from the Crime Lab report without affording Thomas the opportunity to confront the analyst who prepared that report – a straightforward Confrontation Clause violation. 

The State tries to sidestep that violation by arguing that Thomas impliedly waived his right to confront the analyst who prepared the Crime Lab report when his expert witness "relied on" the DNA evidence in that report and then "gave factually inaccurate testimony about" it. This argument is based on the direct testimony of Thomas's expert that he did not see any defensive wounds or "signs of a struggle" on the victim. The State claims that was inaccurate because the DNA evidence showed that Thomas's DNA was under the victim's fingernails (and her DNA under his). And for that reason, the State did not violate the Sixth Amendment by establishing the facts contained in the report through cross-examining Thomas's expert. 

This argument, however, mirrors an evidentiary rule the United States Supreme Court recently held was unconstitutional in Hemphill v. New York. That rule allowed evidence that would otherwise violate the Confrontation Clause to be admitted when the defendant "opened the door;" that is, when the defendant created "a misleading impression that requires correction with additional materials from the other side."  The Court rejected that rule because the Sixth Amendment's text "'does not suggest any open-ended exceptions from the confrontation requirement to be developed by courts.'" ...

                                                                                                         ***

.... Yet that is what the State asks us to conclude: that the DNA evidence contained in the Crime Lab report "was reasonably necessary to correct [the] misleading impression" created by Thomas's expert's testimony that he did not see any defensive wounds or "signs of a struggle" on the victim. But adopting the State's position would defy Hemphill – something we cannot do. Accordingly, Thomas did not impliedly waive his Confrontation Clause right, and admitting testimony about the contents of the Crime Lab report without affording him the opportunity to confront its author violated the Sixth Amendment. 

Nevertheless, the error was harmless, Dallet said.

Here, it is clear beyond a reasonable doubt that the admission of the DNA evidence did not contribute to the guilty verdict. To be sure, the DNA evidence was used as support for the State's theory that Thomas intended to kill the victim and, conversely, to rebut Thomas's theory that the death was accidental. And admittedly, the DNA evidence was somewhat useful in that regard as it bolstered the State's narrative that Thomas scratched the victim's face with his free hand while choking her to death. But the evidence wasn't necessary to support that theory since the State's case was already strong without it. The jury heard testimony from the medical examiner about injuries to the victim's face, neck, tongue, and lips, all of which were consistent with Thomas violently and intentionally strangling the victim. Additionally, the jury also heard from Thomas's neighbor, who awoke to a loud argument in the middle of the night and a woman screaming "[s]top, stop, I love you, I love you." She then heard a loud noise, furniture moving, and silence. 

Concurrence

.... I agree with my colleagues that any alleged Confrontation Clause violation was harmless. But I do not join their analysis of the Confrontation Clause issues for two reasons. 

​First, it is unclear how to analyze and categorize the State's use of the report. In response to Thomas's postconviction motion and his appeal, the State argued the DNA evidence was used for impeachment purposes. However, in briefing and at argument before us, the State asserts, and Thomas agrees, that the DNA evidence was admitted for its truth during cross-examination. Justice Roggensack's opinion concludes that the DNA evidence was properly used to impeach the defense expert – relying on the parties' prior arguments. By contrast, Justice Dallet's opinion relies on the State's current representation, despite the fact that is not how this issue was litigated or represented below. This is unusual, to say the least, and forms a questionable foundation upon which to opine on these matters.

Second, the confrontation issues in this case are novel and factually complicated. They center on how to treat a report not admitted into evidence that is nonetheless reviewed by a testifying defense expert. May the contents of such a report be explored on cross-examination by the State? To what end? The United States Supreme Court, whose decisions we are principally applying in this area of law, has not addressed this question. With little guidance from the Supreme Court in this still emerging area of law, and because this case is sufficiently resolved on harmless error, I would not wade into these uncharted waters at this time. 

​Rather than forge our own path on the State's use of the evidence, or analyze a novel area of federal constitutional law where the United States Supreme Court has left much unaddressed, I would simply conclude the Confrontation Clause errors Thomas alleges, if they are errors at all, were harmless. Thomas is not entitled to a new trial and his convictions should be affirmed. I respectfully concur.

​Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized. Underlined text indicates emphasis added by the justices, not WJI.

The primary election is coming up on Tuesday, February 21. There's a statewide primary for an open seat on the Wisconsin Supreme Court, as Justice Patience Roggensack is not seeking reelection.

Wisconsin Justice Initiative asked each of the candidates to answer a series of questions. One candidate responded, and her answers are printed here as submitted. The questions are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments.

​The responding candidate, Janet Protasiewicz, is a trial judge on the Milwaukee County Circuit Court. 

Candidate Everett Mitchell is a trial judge on the Dane County Circuit Court. You can view his April 2022 presentation at a WJI Salon on the topic of juvenile justice here.

Candidate Jennifer Dorow is a trial judge on the Waukesha County Circuit Court. You can read the "Walker's judges" profile of her, which WJI published in 2016 based on Dorow's 2011 application for her judicial appointment by then-Gov. Scott Walker, here. WJI's post on Dorow has been linked to or cited recently by other publications, including The New York Times and Urban Milwaukee.

Candidate Daniel Kelly is a former Wisconsin Supreme Court justice. After losing his election campaign in 2020, he served as a senior fellow at the Institute for Reforming Government. You can read the "Walker's judges" profile of him, which WJI published in 2020 based on Kelly's 2016 application for his judicial appointment by Walker, here.​

Why do you want to become a justice? 

I have found service as a Milwaukee County Circuit Court Judge extremely fulfilling. It is intellectually stimulating, allows me to learn about many aspects of the law I was not exposed to as a prosecutor, and fulfills my commitment to public service.

I am running for the Wisconsin Supreme Court, because I feel it is my duty to serve and I cannot sit back and watch right-wing extremists manipulate the law for political benefit and destroy the reputation of our once truly nonpartisan court. There are so many issues that will come before the court that will have a real impact on the lives of people in Wisconsin, that I feel compelled to devote my energy and talents so I can help ensure the court is fairly administering justice to protect the rights of all the people. I believe I possess the depth of legal experience, life experience, judgment, judicial demeanor, and values to be a just and effective Justice on the Wisconsin Supreme Court.

Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way. 

Obergefell v. Hodges is one of the best Supreme Court opinions in the last thirty years. In 2015, the Supreme Court ruled that all same-sex couples are guaranteed the right to marry by the Due Process Clause of the Fourteenth Amendment. This was a monumental decision because the Court deemed the right to marry as one of the fundamental liberties it protects. This was a huge victory for LGBTQIA+ individuals who have faced decades of discrimination and have been fighting tirelessly for civil rights. This win affirmed that all Americans should be regarded equally and moved the United States toward being a more fair and just society.

Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way. 

The 2022 SCOTUS decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, is one of the worst decisions in modern times. It stripped women of their right to determine their own health decisions, within the well-reasoned personal rights and limitations established in Roe for women to access abortion services legally. It threw to the States, after 50 years, the ability to determine rights on a state-by-state basis, resulting immediately in a patchwork of rights, the limitation of medical resources for women based upon where they lived, and the re-animation of the 1849 Wisconsin abortion ban that is now being challenged by the Attorney General and Governor. It failed to recognize the right of privacy in the 9th Amendment to the Constitution, as well as case law on privacy rights, which lays the groundwork for attacking a host of other privacy rights. The concurring opinion of Justice Thomas made it clear that marriage equality, birth control, and sodomy laws are the next rights to be challenged. Although he found exception for interracial marriage, which would have negatively impacted him personally, this issue is also based upon the same theories as the other privacy cases. This decision was extreme, did not respect precedent, did not tailor a narrow holding on the facts of the particular case, and was a radical stripping of an established right for over half the population of this country. As the challenge to the Wisconsin law will be heard before the Wisconsin Supreme Court, I cannot prejudge the merits of that case. I can say that the decision in Dobbs, which took away reproductive rights instead of expanding them, laid a road map for stripping more rights in the future by analogy, and was wrongly decided in my opinion.

Describe your judicial philosophy. 

My judicial philosophy is that every person deserves to walk into our courtrooms and demand justice, and not feel like the thumb is on the scale against them. I believe in upholding our constitution and defending our hard-earned rights. I believe in the simple credo of “do justice.” My philosophy is founded in the Constitution of the United States and the State of Wisconsin.

Being a judge involves examining facts, applying the law, and making sure the legal protections are observed. Those who interact with the judicial system need to know they are seen, heard, and treated with fairness and respect. A judge must never lose sight of the impact of the legal system on victims, witnesses, law enforcement, and those accused of crimes. All persons before the court deserve respect for their rights, protection of their safety, justice and restitution for harms suffered, and offenders need rehabilitation opportunities to make them better citizens.

Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.

During my 26 years as a Milwaukee County Assistant District Attorney, I spent many years in the Juvenile Division, where I prosecuted termination of parental rights (TPR) cases, where family reunification was not viable and there was an adoptive resource available. One such case was State of Wisconsin v. Margaret H., which was a TPR case involving two young brothers, where I was the prosecutor, representing the State of Wisconsin in the trial before the Circuit Court.

In this case, it was the grandparent who was not an adoptive resource, but wanted the TPR to be denied. The State’s positions allied with that of the Guardian ad Litem (GAL), who was the attorney appointed for the children in this matter to protect their best interests. The GAL filed an appeal of the Circuit Court denial of termination of parental rights, based upon a minimal family relationship the children had with the grandmother. I joined the GAL in that appeal process, where the Court of Appeals reversed the decision of the Circuit Court and the grandparent appealed to the Wisconsin Supreme Court. I filed a brief with the Wisconsin Supreme Court on behalf of the State, which supported the position of the GAL. I argued before the WSC, as well as filing the appeal briefs, and the State and GAL prevailed, when the WSC affirmed the decision of the Court of Appeals to overturn the Circuit Court and grant the TPR, so these boys could be adopted and have a stable and safe future. That was a difficult case, but extremely gratifying. 

As a Milwaukee County Circuit Court Judge, I have handled homicides and sexual assault cases. One of the most difficult was State of Wisconsin v. Dariaz Higgins, Milwaukee County Case Number 2019CF001050. The defendant snatched his 2-year old daughter, concealing her whereabouts from her mother, resulting in the family frantically searching for the young child. The defendant contacted the mother, to lure her into meeting him to get the child back. When the mother and her friend went to meet him in Milwaukee County, he shot and killed the 24-year-old mother and seriously wounded the mother’s friend. The little girl’s body was later found dead in Minnesota. He was prosecuted in Milwaukee County for First Degree Intentional Homicide, Attempted First Degree Intentional Homicide, and First Degree Recklessly Endangering Safety. While this did not proceed to trial, because he pled guilty to the two most serious charges, the horrendous nature of this case and the issues at sentencing made this case significant in my career. I sentenced him to life without parole, which was the only appropriate sentence in this matter. This was only a small measure of justice for his crimes, because these lives could never be made the same and these families could never be made whole, when nothing could bring back this child or her mother.

Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.

In my long life and career, I have witnessed many injustices in and outside of court. What stays with me is the impact of abuse and neglect on children, which I dealt with as a prosecutor on CHIPS cases, and later as a judge on abuse cases. I think this injustice strikes at the heart of the community. In court as a prosecutor, I could advocate for children’s safety and the punishment of those who abused them. As a judge, I tried to fashion remedies that take into respect the particular facts of the case and the impact of abuse that makes a victim child more likely to suffer as an adult from poverty, lack of education, substance abuse, and mental health concerns. As a person outside of the courtroom, I have volunteered with at-risk teens and mentored groups to support women to try and break this cycle and make our community healthier. We are a country of privilege and wealth, so I have endeavored to use the privileges I have enjoyed in a stable family and faith community to give back to my community. That was why when I became an attorney, went into public service, and became a judge.

I believe respect for persons before the bench, whether they be litigants, attorneys, or court staff, is essential to modeling equity. The behavior of a judge is reflected in how the court staff interacts with the public. I have an open and welcoming courtroom. Small things, like asking someone what they want to be called, or scheduling around someone’s work or daycare needs when possible, can really make a difference in the atmosphere of the courtroom. I also make every effort to show litigants that they are seen, heard, and respected. On the Wisconsin Supreme Court, though there are no litigants appearing, I would use the same people skills to build bridges with my colleagues, because having respectful relationships is conducive to getting others to listen to your viewpoint, which results in a more equitable outcome.

Describe other relevant work experience that would assist you in your performance as a justice.

Before being elected to the bench, I served more than 25 years as Assistant District Attorney, where I prosecuted serious crimes and protected families. I have been elected to the bench twice without opposition. I currently serve in Family Court and have also presided over homicide, sexual assault, misdemeanor, domestic violence, and drug courts. I earned my bachelor’s degree at UW Milwaukee and my law degree at Marquette University, where I later served as an Adjunct Professor of Law.

Have you ever been convicted of a crime, either misdemeanor or felony? If so, explain. When did the incident(s) occur?

N/A

Have you ever been cited for a municipal offense? If so, explain. When did the incident(s) occur? 

N/A
 
Do you support requiring any justice to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge's election? If not, why not? If so, why? What contribution limits would you set?

It is important to have a strong, clear recusal rule. I believe this should be developed through public hearings, and an open and transparent process, so that all actors are aware of what might trigger a recusal. This would help to restore greater confidence in judges. People should have increased confidence that special interests are not rigging the judicial system for their own political agendas.

What, if anything, would you do to improve the judicial commission?

The judicial commission operates with too much secrecy, is too staff-driven, and is not effective as a body to hold bad-acting judges accountable. I would support a review of its policies and procedures and support public hearings to advance this discussion and create a more effective mechanism to hold judges accountable.

What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them? 

The funding for the court system statewide is insufficient. The lack of public defenders, and now even prosecutors, available to take cases, especially in more rural counties, delays the court process, impacting not only offenders who may be in custody, but victims and witnesses involved in a case. If an offender is out of custody awaiting trial, there are insufficient resources for pretrial supervision, such as electronic monitoring, that can provide the offender with rehabilitative interventions pretrial, but also protect the public from new offenses while the accused is on bail status. One great resource in Milwaukee County is the Milwaukee Justice Center, but its funding is not sufficient. There are not enough programs available for drug and alcohol counseling, batterers intervention, parenting classes, job training, etc., which aid in not only rehabilitating those convicted, but in allowing those charged to avail themselves of alternative dispositions to conviction and incarceration.

For example, when I was a judge in Domestic Violence Court, it was common to order violence counseling and parenting classes, not only at sentencing, but also as conditions of Deferred Prosecution Agreements. Sometimes, the accused would even start this programming while the case was pending, to show good faith and get a more favorable outcome, or to get a No Contact Order with the intimate partner victim lifted or modified to allow non-violent contact. In my current assignment in Family Court handling divorces, I have encountered persons who completed these extensive programs through the criminal process, but they are not “certified” for application in the family courts. I believe rigid adherence wastes vital system resources and frustrates the purpose of improving people’s lives and futures, which is counterproductive to treatment and rehabilitation. The additional deficiencies in the system include the lack of court reporters, court clerks, prosecutors, and court interpreters; the system being overburdened results in justice being delayed. 

This was exacerbated during the pandemic, where the courts being unable to conduct trials for more than a year resulted in a tremendous backlog of cases, while the accused sometimes remained in custody without being convicted, where victims or witnesses became uncooperative or felt out of contact, or those out of custody without services and supervision were not being rehabilitated, or were financially impacted by being unable to gain employment with an open case and could get into more trouble. So, in short, the Wisconsin Supreme Court has to vigorously advocate to the legislature for more resources for the whole system, so that society is safer, justice is swifter, and rehabilitation is a focus to build stronger families and communities in the future.

Provide any other information you feel would be helpful to potential voters deciding for whom to vote.

Dan Kelly and Jennifer Dorow are cut from the same cloth. Both are right-wing partisans that will do what is in the best interest of their party and right-wing extremists. They were both selected by Scott Walker to reflect his political goals and the interests of the Republican Party. We can’t afford to let either one of them sit on our state's highest court. Judge Dorow has presided in the trial court of a far less populous county than I have, and her level of experience does not match my own. While she has received sudden fame from a tragic high-profile homicide case, I spent years litigating many tragic sexual assault and homicide cases, day after day, without live broadcast or extended television interviews. Former Justice Kelly was appointed by Walker to the Wisconsin Supreme Court, to finish the term of a conservative justice who stepped down even though he had absolutely no experience as a trial court judge, but plenty of political connections. In 2020, Kelly faced the voters four years later, with record special interest group spending and the endorsement of then President Trump. The voters of Wisconsin resoundingly defeated Kelly by electing Justice Jill Karofsky to a 10-year term on the Court.

I believe that my temperament and ability to work well with people of all social and political backgrounds is a strength I can bring to the Wisconsin Supreme Court. I want to restore faith in the Supreme Court so that the Court is not a partisan political body, but one that upholds and applies the law and Constitution.

By Gretchen Schuldt

The state Supreme Court will hear arguments Tuesday in a case that could have a profound impact on how hospitals and doctors treat patients and the degree of control patients have over their medical care.

At issue is whether patients or their representatives can demand treatment that their caregivers believe is below an adequate standard of care.

The Court of Appeals, in a 2-1 decision, ruled in May that Aurora Health Care did not have to administer ivermectin to John Zingsheim, a COVID-19 patient. Ivermectin, promoted by some as a COVID treatment, is primarily used as an anti-parasitic in farm animals and is given to humans to treat some parasites and scabies. It has not been approved by the FDA for COVID-19 treatment. 

Aurora declined to administer the drug, requested by Zingsheim’s representative, Allen Gahl, who is the plaintiff in the appeal. Waukesha County Circuit Judge Lloyd Carter first ordered Aurora to administer ivermectin, then said Gahl should find a physician willing to administer the drug and to whom Aurora could grant credentials to practice in its hospital. Once credentialed, that doctor would have permission to go to the hospital and administer the ivermectin to Zingsheim.

Aurora appealed and won. Then-Appellate Judge Lori Kornblum wrote that Gahl “failed to identify any law, claim, or recognized cause of action under Wisconsin law by which a patient may compel a health care professional to administer a course of treatment contrary to that medical professional’s judgment,” so the lower court “erroneously exercised its discretion in granting Gahl injunctive relief.”

Appellate Judge Shelley A. Grogan, in dissent, said Carter ruled reasonably when he issued the injunction directing Aurora to credential a doctor willing to give the treatment to Zingsheim.

Zingsheim recovered.

Aurora, in its brief to the Wisconsin Supreme Court, agreed that Gahl failed to meet legal standards to be granted the relief he sought. In addition, it argued, “There is no authority that would give hospital patients a legal right to demand a specific treatment against the medical judgment of their providers.”

Aurora is represented by attorneysJason J. Franckowiak, Michael L. Johnson, and Randall R. Guse.

Karen Mueller, the lawyer representing Gahl, said in her appeal brief that “It has been established in the record that the hospital relies heavily on the CDC and the FDA for directions on what drugs to give and what drugs to withhold from their patients.” 

Mueller accused Aurora of “strict and blind adherence to unconstitutional edicts, guidelines and administrative rules of federal agencies who had loftier goals than keeping John Zingsheim and many other Wisconsin citizens alive.” 

Both parties have allies in the case. The Wisconsin Medical Society and the American Medical Association filed a joint amicus brief supporting Aurora. Two groups, the Front Line COVID-19 Critical Care Alliance and the Association of American Physicians and Surgeons, are weighing in on behalf of Gahl.

The AMA and Medical Society said reversing the appellate decision would mean that doctors will be forced “to choose between the law and their ethical duties, potentially exposing patients to harm and physicians to liability.” 

Ivermectin is not-an FDA-approved COVID treatment, attorneys Patricia Epstein Putney and Melita M. Mullen wrote.

“To the contrary, the FDA cautions that taking ivermectin – even in amounts approved for human consumption – can interfere with other medications” and cause a variety of reactions ranging from nausea to “seizures, coma, and even death,” they wrote.

Doctors can administer off-label prescriptions if they minimize risk, the treatment is backed by evidence and clinical experience, and the treatment is shown to improve patient outcomes, they said. 

“Novel treatments do not become part of the standard of care simply because they are ethically attempted, however,” they said. “And physicians do not breach ethical or legal duties by declining to administer them. Consequently, even if a physician could ethically treat COVID-19 with ivermectin, patients have no legal or ethical entitlement to that care.”

The Physicians and Surgeons group, in supporting Gahl, said Grogan’s dissent was right and that Wisconsin law “does fully recognize the right of a patient ‘to request and receive medically viable alternative treatments.’ That right would be meaningless if a powerful, revenue-maximizing business such as Aurora could interfere with access to treatment without judicial review, as the panel majority decision mistakenly establishes.”

The FDA found “decades ago” that ivermectin is safe, attorneys Rory E. O’Sullivan and Andrew L. Schlafly wrote in the brief. Many physicians have prescribed it for countless COVID-19 patients, they said.

“Yet Aurora blocked access to that physician-prescribed medication by patients trapped in its hospital,” they said. “Aurora never disclosed to the public that patients who admit themselves to that hospital will be automatically denied this medical care that is widely available outside of its hospital. As Aurora benefits enormously from its nonprofit tax status in purportedly serving the public, it can hardly hide behind its private status now to evade judicial review for how it senselessly blocked access to medication by all the patients hospitalized there for COVID-19.”

Attorney Joseph W. Voiland, writing for the Critical Care Alliance, said overturning the Court of Appeals decision would “preserve the equitable and statutory authority…of trial judges to grant temporary injunctive relief, particularly in matters where a patient is on their deathbed without many, if any, other option.” 

Mueller, Schlafly, and Voiland have represented and advocated for conservative causes in the past, such as arguing that the 2020 presidential election was “stolen” (Mueller), filing suit to challenge the Affordable Care Act (Schlafly), or submitting an amicus brief for Sen. Ron Johnson in Wisconsin’s ballot-box case (Voiland).

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.
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The case: State of Wisconsin v. Charles W. Richey
 
Majority: Justice Rebecca Frank Dallet (13 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, and Jill J. Karofsky
 
Dissent: Justice Patience Drake Roggensack (6 pages), joined by Chief Justice Annette Kingsland Ziegler and Justice Brian K. Hagedorn

The upshot
 
The Fourth Amendment requires a police officer to have particularized reasonable suspicion that a crime or non-criminal traffic violation took place before performing a traffic stop.  Here, a stop based on the generic description of a Harley-Davidson motorcycle recently seen driving erratically in the area fell short of that threshold. . . .

                                                                                                   * * *

We therefore reverse the decision of the court of appeals and remand to the circuit court with instructions to vacate the judgment of conviction and to grant Richey's motion to suppress.
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Background
 
Officer Alexis Meier was on patrol in the Village of Weston at 10:59 PM on a Saturday night in late April. Over the radio, she heard a report that a sheriff's deputy was investigating a disabled motorcycle at a nearby intersection. After just fifteen seconds, the deputy cleared that stop without explanation. Five minutes later, at 11:04 PM, that same sheriff's deputy told nearby officers to be on the lookout for a Harley-Davidson motorcycle driving erratically and speeding north on Alderson Street (near the intersection with Jelenik Avenue)—approximately a mile away from the location he had given for the disabled motorcycle. The sheriff's deputy did not give any additional details about either the motorcycle or its driver. Officer Meier later said that she believed that the motorcycle the deputy saw on Alderson Street was fleeing police.

Five minutes after the deputy's report, at 11:09 PM, Officer Meier spotted a motorcycle driving east on Schofield Avenue a little more than a block west of the intersection with Alderson Street—about a half-mile from the reported location of the speeding Harley. Traffic was light at that time of night. Additionally, Officer Meier had seen relatively few motorcycles out that early in the year and none around the time of the deputy's report. Meier looked up the registration, which showed that it was a Harley-Davidson registered to Richey. She followed the Harley-Davidson for several blocks, but did not see any erratic driving, speeding, or other traffic violations. Meier nevertheless performed a traffic stop, suspecting that this Harley-Davidson was the one seen driving erratically on Alderson Street five minutes earlier.

The court included a map to aid the reader:

The guts

The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." Investigative stops, including traffic stops, are seizures and must therefore comply with the Fourth Amendment. 

To conduct an investigative stop, the police must have "reasonable, articulable suspicion that criminal activity is afoot." Reasonable suspicion must be founded on concrete, particularized facts warranting suspicion of a specific individual, not "'inchoate and unparticularized suspicion[s] or hunch[es].'" We assess reasonable suspicion in light of the totality of the circumstances.  Thus, we look at the "whole picture" to determine whether the officer had reasonable suspicion, not each fact in isolation. 

The whole picture here includes the following information known to Officer Meier before she stopped Richey's motorcycle:

• A Harley-Davidson was driving erratically and speeding north on Alderson Street towards Schofield Avenue five minutes earlier.
• Meier  first  saw  Richey's  motorcycle  driving  east  on Schofield Avenue a little more than a block west of the intersection with Alderson Street——about a half-mile from the reported location of the speeding Harley.
• Richey's motorcycle was a Harley-Davidson and was the only motorcycle she saw around the time of the deputy's report.
• Meier followed Richey for several blocks but did not observe any speeding, erratic driving, or other traffic violations.
• Traffic was light that night, and Meier had seen relatively few motorcycles out that early in the year.

It is undisputed that the only reason Officer Meier pulled Richey over is she suspected he was the erratic driver the deputy saw five minutes earlier. The question is whether that suspicion was reasonable.

Although we acknowledge that it is a close question, we hold that the stop was not supported by reasonable suspicion. To clear the reasonable-suspicion threshold, Officer Meier's suspicions had to be particularized; she needed concrete reasons for believing that Richey's Harley-Davidson and the one seen five minutes earlier speeding north on Alderson Street were one and the same. But the sheriff's deputy's generic description of a Harley-Davidson gave her very little to work with. Except for the manufacturer, she knew nothing specific about the Harley the deputy saw—not the model, type, size, or color, let alone a license plate number. Nor did she know anything about the driver, what he or she was wearing, whether he or she wore a helmet, or even whether the driver appeared to be a man or a woman. And although she followed Richey for several blocks before initiating the stop, there is no indication that she radioed the deputy during that time to ask for more details.

The State nevertheless argues that Officer Meier's suspicions were particularized because Richey's motorcycle "fit a highly specific and particular description." Namely, it was a Harley driving in the same general area as the deputy's report late in the evening and at a time of year when relatively few motorcycles were on the roads. These facts are part of the totality of the circumstances, but they are not enough to transform Officer Meier's hunch into particularized reasonable suspicion. For starters, the "highly specific" description of a Harley-Davidson could apply to a large number of vehicles. After all, Wisconsin is the home of Harley-Davidson, and it is one of, if not the most popular manufacturers of motorcycles in Wisconsin. Although reasonable suspicion is a low bar, it is not so low that it allows the State to stop so many otherwise law-abiding citizens based on such a generic description. Additionally, although the circuit court found that it was "the beginning, very beginning, of [motorcycle] season," it also acknowledged that "[c]ertainly, people drive their bikes in April."

That Richey's Harley was spotted close to the location of the deputy's call just five minutes later does not add much to the particularity of Officer Meier's suspicions either. Although proximity in time and place to a report of criminal activity can, under some circumstances, provide some of the particularity that is otherwise lacking in a report of criminal activity, Richey's exact location and direction of travel raise more questions than they answer. Returning to the map above, the letter "D" marks where the deputy saw the erratic driver, and the arrow shows the direction of travel. Although Richey was seen in that general area five minutes later, at the spot marked with the letter "A," we note that Richey was headed east on Schofield Avenue towards the intersection with Alderson Street at that time.  In other words, Richey was driving towards the reported location of the erratic and speeding driver when Officer Meier first saw him. Given that Officer Meier thought the erratic driver was fleeing police that would be a strange choice. Additionally, counsel for both parties acknowledged at oral argument that the speed limits in the area were likely the 25 or 30 mile-per-hour limits applicable to most city streets. Even at normal speed, it would take only about a minute to travel from the location of the deputy's report to where the officer saw Richey, and a driver fleeing police at high speed could have gone much farther in the same amount of time. Thus, in order for Richey to have been the subject of the deputy's report, he would have had to have driven north on Alderson Street at high speed, ridden around the general area for several minutes, and eventually looped back in the direction he came from while now driving normally. This unlikely sequence of events, when coupled with the deputy's generic description of a Harley- Davidson headed north on Alderson Street, demonstrates that Officer Meier's suspicions were not sufficiently particular to Richey. 

                                                                                                  * * *

. . . . Here, the sheriff's deputy reported a Harley-Davidson driving erratically north on Alderson Street at high speed and then lost sight of it. And Officer Meier had to use a combination of logic and guesswork to locate that motorcycle. The problem is that . . . the deputy gave Officer Meier little on which to ground her logic. She did not know anything about the motorcycle other than that it was a Harley-Davidson and she knew nothing about its driver. And the timing and location at which Officer Meier first saw Richey did not fill those gaps, since these facts support only a tenuous inference that Richey was the motorcyclist Officer Meier was looking for. Accordingly, we hold that, in light of the totality of the circumstances, Officer Meier lacked reasonable suspicion to perform the stop. . . .

The dissent

Reasonable suspicion is a common-sense test based on the totality of the circumstances known to the officer at the time of the seizure. Stated otherwise, "was the action of law enforcement officers reasonable under all the facts and circumstances present[.]" Reasonable suspicion includes all factual circumstances and the reasonable inferences arising from those facts. I conclude that the record before us fully supports reasonable suspicion to stop Charles W. Richey; and therefore, evidence of Richey's eighth Operating While Intoxicated (OWI) violation was admissible. There is nothing in the record that allows us to conclude Officer Meier's inference that Richey was the motorcyclist her colleague warned of was unreasonable. Because the majority opinion refuses to accept reasonable inferences from undisputed facts, it enables Richey to achieve suppression of evidence of drunk driving that was apparent after he was stopped. Accordingly, I respectfully dissent.

                                                                                                 * * *

The question here is at what point does societal interest in investigating a reported law violation rise to the level of reasonably supporting an investigative stop. LaFave has identified six factors that we have concluded should be considered in assessing whether the facts and the reasonable inferences from those facts support reasonable suspicion for an investigatory stop:

(1) [T]he particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender's flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.
 
Here, Officer Meier clearly articulated that only five minutes before she saw Richey, she was asked to be on the lookout for a Harley-Davidson motorcycle that another officer had observed speeding and driving in a reckless manner. When she saw Richey, she called in the license plate on his cycle and confirmed that his bike was a Harley-Davidson. Her sighting was within the geographic area in which the speeding motorcyclist was seen. In addition, she had seen no other motorcycles in that area and it was late at night when she stopped Richey.

Furthermore, it was reasonable to infer that Richey was the driver of the Harley-Davidson another officer had reported as speeding and committing other traffic violations. Richey was present in the same area as the reported traffic violator; his presence was within five minutes of (the sheriff deputy's) report and request that other officers be on the lookout for a Harley-Davidson motorcyclist. It was late at night and Officer Meier had seen no other motorcycles. April 28, the date of the stop, also was too early in the season for many motorcyclists to be out. It was possible that if Officer Meier did not act "immediately the opportunity for further investigation would be lost[.]" "A minimal amount of facts may, under these circumstances, be given greater weight than if the opportunity to act in the future is not foreclosed."

It also is important to our analysis to note that there is nothing in the record that causes the inference that Richey was the driver of the Harley-Davidson motorcycle that (the sheriff's deputy) had seen speeding five minutes earlier to be an unreasonable inference. The majority opinion does not address why the brief period of time after the lookout was called and the defined location of the traffic violation that are part of the reasonable suspicion analysis, as LaFave and we required in (a prior case), do not support reasonable suspicion.

The facts are not in dispute and reasonable inferences from those facts support reasonable suspicion that it was Richey who was speeding and driving his motorcycle in a reckless fashion. Based on the officer's articulable facts, it was not unreasonable to stop Richey on that night. Accordingly, I would affirm the court of appeals and I dissent from the majority opinion.

The majority opinion concludes that the Wisconsin Elections Commission's (WEC) documents (hereinafter memos) are invalid because ballot drop boxes are not legal in Wisconsin and because absentee ballots must be personally delivered by the voter to the municipal clerk at the clerk's office. I agree, and join the majority opinion. I write further to explain that, under Wisconsin statutes, it is the elector who shall mail the absentee ballot to the municipal clerk. Accordingly, I respectfully concur. 

                                               ***


The circuit court decided that the elector was required to personally mail his or her own completed ballot to the clerk's office. Affirming the circuit court's decision is expressed in several briefs (sic), as is the need for uniform guidance. The WEC has issued memos that encourage drop boxes over mail-in ballot returns, and municipal clerks and election officials have acted on those memos. Teigen is a Wisconsin voter who is affected by the WEC's memos. Because the controversy is justiciable, I proceed to the merits of Teigen's statutory interpretation claim with regard to mailing absentee ballots, and conclude that the memos encourage drop boxes over mailing completed ballots and are inconsistent with Wis. Stat. § 6.87(4)(b)1. Therefore, they are contrary to law. 

                                                                                ***

The statute provides in regard to mailing that absentee ballots "shall be mailed by the elector . . . to the municipal clerk." Electors are statutorily defined as "[e]very U.S. citizen age 18 or older who has resided in an election district or ward for 28 consecutive days before any election where the citizen offers to vote[.]"  Accordingly, when the statute says "the elector[,]" it means, the voter. 

The plain statutory text, provides that if a ballot is returned by mail, it is the "elector" who does the mailing. The legislature could have said "may be mailed by the elector" if it were not mandatory that the elector do the mailing. ...
​
                                                                                ***

That agents are not permitted by the terms of Wis. Stat. § 6.87(4)(b)1 to mail absentee ballots is further supported by comparing the language in that statute with other statutes in which the legislature has explicitly allowed an agent or non-elector to participate in the absentee voting process. Those statutes, in keeping with the policy in Wis. Stat. § 6.84(1), have formalistic, regulated conditions attached. 

​For example, when a voter is a member of a sequestered jury, the legislature has provided very detailed instructions about voting and returning the ballot where a non-voter participates. ...

Another example of the legislature's recognition of agents involved in voting or ballot return is found in Wis. Stat. § 6.86(3)(a) for hospitalized electors. ...

Wisconsin Stat. § 6.87(5) also permits the use of an agent when the elector is disabled. ... Once again, when the legislature decided that use of an agent in voting was permissible, it specified the circumstances under which an agent could be employed and defined criteria for performing as an agent in regard to absentee ballots. 

Accordingly, because the text and context of § 6.87(4)(b)1. instruct me to do so, I conclude that no one but the elector may mail an absentee ballot unless the elector and his or her designated agent fit within a different statutory circumstance that explicitly permits it.

This court's binding precedent allows WEC – a creature of the legislature authorized only to implement Wisconsin's election laws – to make law by executive fiat, thereby granting it a potent "Badge[] of Domination[.]" In Trump v. Biden, a majority of this court gave WEC's "advice" the force of law. It declared this "advice" is "the rulebook" for elections – never mind what the statutes enacted by the legislature say. ...

Even properly promulgated administrative rules do not have this kind of weight; in the hierarchy of laws, rules fall beneath statutes (if rules may even be called law). I would overrule Trump, but it remains binding precedent under which the WEC memos have the force of law. Because a majority of this court accords them this effect, they must be rules. Because they were not promulgated according to statutorily prescribed procedures, they are invalid for this additional reason. ...

This court's decision in Trump gave WEC the power to materially alter how elections in this state are conducted – without a single procedural check. Trump should be overruled, but if the court continues to hold the memos need not be promulgated as administrative rules, they should at least be subject to the statutory procedures we struck down in SEIU (Service Employees International Union, Local 1 v. Vos). As the law stands, WEC's staff have absolute prerogative power. The constitution does not permit such corruption of the carefully calibrated powers among the branches of government.

In that case, Grassl Bradley writes, SCOW denied the legislature a role in previewing and clearing guidance documents issued by the administration.

                                                                                ***

​Although the memos should not have the force of law, the majority erroneously concluded otherwise in Trump. In that case, Donald Trump, the incumbent President, and his campaign appealed the results of a recount in two Wisconsin counties. The ballots President Trump sought to strike fell into four categories; two are most relevant in this case. First, he argued "that a form used for in-person absentee voting [wa]s not a 'written application' and therefore all in-person absentee ballots should be struck." Second, President Trump argued "that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots [wer]e therefore invalid."

As the majority acknowledged, "Wisconsin law provides that a 'written application' is required before a voter can receive an absentee ballot, and that any absentee ballot issued without an application cannot be counted." A majority of this court refused to consider whether the form utilized for in-person absentee voting, EL-122, constituted a written application. It noted, "both counties did use an application form created, approved, and disseminated by the chief Wisconsin elections agency." The majority emphasized "local election officials used form EL-122 in reliance on longstanding guidance from WEC." Therefore, it concluded, "[p]enalizing the voters election officials serve and the other candidates who relied on this longstanding guidance is beyond unfair." "To strike ballots cast in reliance on the guidance now, and to do so in only two counties, would violate every notion of equity that undergirds our electoral system." In Trump, a majority of this court allowed its notions of "equity" and "unfair[ness]" to trump the law. 

Invoking the same rationalizations, the majority declined to examine whether election officials violated a statute by adding missing witness information to absentee ballot certifications. Wisconsin Stat. § 6.87(6d) provides, "[i]f a certificate is missing the address of a witness, the ballot may not be counted." The majority defied this clear textual command because it was concerned that "election officials followed guidance that WEC created, approved, and disseminated to counties in October 2016." It continued, "the election officials relied on this statewide advice and had no reason to question it."

Overall, the majority compared voting – the foundation of free government – to a football game: "[E]lection officials in Dane and Milwaukee Counties followed the advice of WEC where given. . . . Our laws allow the challenge flag to be thrown regarding various aspects of election administration. The challenges raised by the Campaign in this case, however, come long after the last play or even the last game; the Campaign is challenging the rulebook adopted before the season began. Election claims of this type must be brought expeditiously. The Campaign waited until after the election to raise selective challenges that could have been raised long before the election. . . . The Campaign is not entitled to relief, and therefore does not succeed in its effort to strike votes and alter the certified winner of the 2020 presidential election." (Emphasis added by Grassl Bradley.)

Note: We are breaking our own rules again. WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in four: First the lead decision, then the dissent, and then, in two separate posts due to length, the three concurrences. Why? Because this package of writings is significant and gives insight into how SCOW's seven justices think. 

And instead of allowing each writing justice 10 paragraphs, we are allowing up to 20. We've also removed citations from the opinion for ease of reading, but have linked to important cases and laws cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized. 

The case: Richard Teigen and Richard Thom v. Wisconsin Elections Commission

Concurrence: Justice Brian Hagedorn (35 pages)

Dissent: Justice Ann Walsh Bradley (18 pages), joined by Justices Rebecca F. Dallet and Jill J. Karofsky

Majority/Lead Opinion: Justice Rebecca Grassl Bradley (52 pages),  joined by Justice Patience D. Roggensack and Chief Justice Annette K. Ziegler; joined in part by Hagedorn

Concurrence: Roggensack (14 pages)

Concurrence: Grassl Bradley (17 pages), joined by Roggensack and Ziegler

​Intervenor defendant-appellants included the Democratic Senatorial Campaign Committee, Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin.

Concurrence

​The principal issue in this case involves the lawfulness of ballot drop boxes. This case is not about the risk of fraudulent votes being cast or inspiring confidence in elections. This is not about ensuring everyone who wants to vote can, nor should we be concerned with making absentee voting more convenient and secure. Those are policy concerns, and where the law does not speak, they are the business of the other branches, not the judicial branch. This case is about applying the law as written; that's it. To find out what the law is, we read it and give the words of the statutes the meaning they had when they were written. 

                                                                                   ***

A careful study of the text, including its history, along with the supporting statutory context, reveals that unstaffed drop boxes for absentee ballot return are not permitted. Rather, this statute specifies return of absentee ballots through two and only two means: mailing by the voter to the municipal clerk, or personal delivery by the voter to the municipal clerk. And personal delivery to the clerk contemplates a person-to-person exchange between the voter and the clerk or the clerk's authorized representative at either the clerk's office or a designated alternate site. The two (Wisconsin Elections Commission) memos advising otherwise therefore conflict with the law and are properly void. 

                                                                                   ***

Before diving into the law, I offer two observations. First, the election law statutes we are asked to consider are by no means a model of clarity. Many of the controlling provisions were originally enacted over 100 years ago and have been layered over with numerous amendments since. Reasonable minds might read them differently. Significant questions remain despite our decision in this case, especially as absentee voting has become increasingly common. Although our adjudication of this case will provide some assistance, the public is better served by clear statutes than by clear judicial opinions interpreting unclear statutes. The legislature and governor may wish to consider resolving some of the open questions these statutes present. 

Second, some citizens will cheer this result; others will lament. But the people of Wisconsin must remember that judicial decision-making and politics are different under our constitutional order. Our obligation is to follow the law, which may mean the policy result is undesirable or unpopular. Even so, we must follow the law anyway. To the extent the citizens of Wisconsin wish the law were different, the main remedy is to vote and persuade elected officials to enact different laws. This is the hard work of democracy.

                                                                                   ***
Standing

​Standing is the foundational principle that those who seek to invoke the court's power to remedy a wrong must face a harm which can be remedied by the exercise of judicial power. Some of my colleagues have begun to describe standing in far looser terms. It is a really nice thing to have in a case, they seem to say, but not important at the end of the day. I disagree. We have said standing is not jurisdictional in the same sense as in federal courts and that its parameters are a matter of sound judicial policy. But as Justice Prosser put it, "Judicial policy is not, and has not been, carte blanche for the courts of Wisconsin to weigh in on issues whenever the respective members of the bench find it desirable."

                                                                                   ***

Teigen argues that Wis. Stat. § 5.06 gives voters like him a statutory right to have local election officials in the area where he lives comply with election laws. ...

Teigen has a legal right protected by Wis. Stat. § 5.06 to have local election officials in his area comply with the law. The only question, then, is whether the memos at least threaten to interfere with or impair Teigen's right to have local election officials comply with the law. I conclude they do. 

The two memos challenged in this case provide local election officials advice on absentee ballot return – advice Teigen contends is unlawful. Regardless of whether the memos are themselves binding on local election officials (a question explored further below), they no doubt carry persuasive force with those administering elections. Many local election officials will follow advice offered by WEC, even when that advice is not legally binding. Indeed, the record in this case reveals that many local election officials employed drop boxes consistent with WEC's advice after the memos issued. If that advice is contrary to law, it stands to reason that many local election officials, including those in Teigen's area, are likely to rely on and implement erroneous advice. Applying the plain terms of Wis. Stat. § 227.40(1), the memos Teigen challenges at the very least threaten to interfere with or impair his right to have local election officials comply with the law. ... In this case, the question is whether WEC issued an allegedly unlawful rule or guidance document that makes it likely local election officials will not follow election laws. And on that question, Teigen has sufficiently alleged standing. ...

                                                                                   ***

Yet the majority/lead opinion suggests it creates broad voter standing against any election official or WEC by any elector for nearly any purported violation of any election law. Without tethering the analysis to an on-point text, this analysis is unpersuasive and does not garner the support of four members of this court.

Hagedorn writes that Teigen did not have to file a complaint with WEC before going to court.  

In addition, Wis. Stat. § 227.40(1) expressly opens the courthouse doors to those challenging administrative rules or guidance documents: "A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule or guidance document in question." This seems to carve out a particular kind of legal claim – a challenge to rules and guidance documents – and relieves the petitioner of pleading one's case with the agency first. Applying this as written, and in the absence of other contrary arguments, I conclude Teigen was not required to take his case to WEC before seeking judicial relief. ... 

Drop boxes and ballots

In the two memos at issue here, WEC advised clerks that absentee voters could cast their ballots via staffed or unstaffed drop boxes, that drop boxes may be placed at (the) clerk's office or elsewhere, and that individuals other than the voter may deliver the voter's absentee ballot to the clerk. These three positions are inconsistent with Wisconsin's election statutes. The law requires that to return an absentee ballot in person, voters must personally deliver their ballot to the clerk or the clerk's authorized representative at either the clerk's office or a designated alternate site. Because WEC's memos conflict with these statutory directives, they are invalid.

                                                                                   ***

Wisconsin Stat. § 6.87(4)(b)1 was originally enacted as part of Wisconsin's earliest comprehensive absentee voting law in 1915. Regarding return of a ballot, the law provided: "Said envelope shall be mailed by such voter, by registered mail, postage prepaid, to the officer issuing the ballot, or if more convenient it may be delivered in ​person." This wording, plainly read, suggests both the mailing and the delivery must be done by the voter, and directed to the ballot-issuing officer. 

Note: We are breaking our own rules again. WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in four: First the lead decision, then the dissent, and then, in two separate posts due to length, the three concurrences. Here's the first one. Why? Because this package of writings is significant and gives insight into how SCOW's seven justices think. 

And instead of allowing each writing justice 10 paragraphs, we are allowing up to 20. We've also removed citations from the opinion for ease of reading, but have linked to important cases and laws cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized. 

The case: Richard Teigen and Richard Thom v. Wisconsin Elections Commission

Dissent: Justice Ann Walsh Bradley (18 pages), joined by Justices Rebecca F. Dallet and Jill J. Karofsky

Majority/Lead Opinion: Justice Rebecca Grassl Bradley (52 pages),  joined by Justice Patience D. Roggensack and Chief Justice Annette K. Ziegler; joined in part by Justice Brian Hagedorn

Concurrence: Roggensack (14 pages)

Concurrence: Grassl Bradley (17 pages), joined by Roggensack and Ziegler

Concurrence: Hagedorn (35 pages)

Intervenor defendant-appellants included the Democratic Senatorial Campaign Committee, Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin.​

Dissent
​
While Grassl Bradley, in her lead opinion, refers to Teigen and Thom as "Wisconsin voters," Walsh Bradley refers to them together simply as "Teigen." Walsh Bradley explains in a footnote: "The majority/lead opinion refers to Teigen and Thom as the "Wisconsin voters" throughout its opinion. This could be misleading to the reader. True enough, Teigen and Thom are voters who live in Wisconsin. But the use of the term could lead the reader to believe that the plaintiffs here represent a wider swath of people than they actually do. Thus, I refer to the two plaintiffs collectively as 'Teigen. ' "

Although it pays lip service to the import of the right to vote, the majority/lead opinion has the practical effect of making it more difficult to exercise it. Such a result, although lamentable, is not a surprise from this court. It has seemingly taken the opportunity to make it harder to vote or to inject confusion into the process whenever it has been presented with the opportunity.

A ballot drop box is a simple and perfectly legal solution to make voting easier, especially in the midst of a global pandemic.

But it is apparently a bridge too far for a majority of this court, which once again rejects a practice that would expand voter participation.

The majority/lead opinion's analysis is flawed in three main ways. It expands the doctrine of standing beyond recognition, is premised on a faulty statutory interpretation, and without justification fans the flames of electoral doubt that threaten our democracy. 

                                                                               ***
Standing

Teigen has suffered an "injury in fact" to his constitutional right to vote, the majority/lead opinion says, merely because he alleges that election law was not followed. In accepting Teigen's standing to bring this suit, it further states: "the failure to follow election laws is a fact which forces everyone . . . to question the legitimacy of election results."

The majority/lead opinion says that Teigen's "rights and privileges as [a] registered voter[]" give him standing to bring this action challenging the statewide administration of elections. Taken to its logical conclusion, the majority/lead opinion indicates that any registered voter would seemingly have standing to challenge any election law. The impact of such a broad conception of voter standing is breathtaking and especially acute at a time of increasing, unfounded challenges to election results and election administrators.

                                                                               ***
Statutory interpretation

The majority/lead opinion's interpretation of Wis. Stat. § 6.87(4)(b)1. ignores an important distinction. Section 6.87(4)(b)1. uses the phrase "municipal clerk." It does not say "municipal clerk's office." 

This is important because elsewhere the Wisconsin Statutes are replete with references to the "office of the municipal clerk," the "office of the clerk," or the "clerk's office." Not only is such an "office" referenced, but it is specified as a place where a delivery or an action takes place. ... 

We also know that a "municipal clerk" under the statutes is distinct from the "office of the municipal clerk," because "municipal clerk" is specifically defined as "the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives." In other words, the "municipal clerk" is a person, and the "office of the municipal clerk" is a location. ...

If the legislature wanted to require return of a ballot to the clerk's office, it certainly could have done so, as it did in the litany of provisions using such language. ...

Can delivery to a drop box constitute delivery "to the municipal clerk?" Absolutely. A drop box is set up by the municipal clerk, maintained by the municipal clerk, and emptied by the municipal clerk. This is true even if the drop box is located somewhere other than within the municipal clerk's office. As stated, the "municipal clerk" in the statutes is a person, and the "office of the municipal clerk" is a location. Applying this principle, there is nothing in the statute that even hints that unstaffed drop boxes are impermissible. Rather, a drop box, which the clerk or the clerk's designee sets up, maintains, and empties, is simply another way to deliver a ballot "to the municipal clerk." The majority/lead opinion's attempt to avoid the statute's plain language fails.

                                                                               ***

On its face, Wis. Stat. § 6.855 (governing alternate absentee ballot sites) sets forth that alternate voting sites "must be a location not only where voters may return absentee ballots, but also a location where voters 'may request and vote absentee ballots.'" Thus, as the majority/lead opinion acknowledges, "[b]allot drop boxes are not alternate absentee ballot sites under (the statute) because a voter can only return the voter's absentee ballot to a drop box, while an alternate site must also allow voters to request and vote absentee at the site." 

The majority/lead opinion reads into (the law) an implication beyond the statute's language. Although the majority/lead opinion correctly acknowledges that (the statute) does not describe drop boxes, it seeks support for its result in the assertion that "[t]he legislature enacted a detailed statutory construct for alternate sites" while at the same time "the details of the drop box scheme are found nowhere in the statutes." This argument falls flat for the same reason the majority/lead opinion's statutory analysis of Stat. § 6.87(4)(b)1 fails: the legislature did not include a detailed scheme for drop boxes in the statutes because it did not need to do so. As analyzed above, (state law) already authorizes them. 

                                                                               ***

State law allows local election officials some discretion on how elections in their communities should be run, Walsh Bradley writes.